Documents: Man shocked, kicked repeatedly by cops before death

Lawsuit filed in Taser death outside Mason gas station

UPDATED 11:57 AM EST Dec 07, 2012

CINCINNATI -

An unarmed, mentally ill Ohio man who died during a confrontation with police was shocked with a Taser stun gun seven times, kicked and repeatedly hit with a baton, all mostly after he had fallen face-first onto cement and stopped moving, according to newly released court documents obtained by The Associated Press.

Police in Mason previously said only that 39-year-old Doug Boucher died after he was shocked by a Taser, but hadn't revealed how many times or many other details surrounding the Dec. 13, 2009, incident, including the fact that an unresponsive Boucher was lying face-down on the ground for five of the seven stuns he received.

Now lawyers for Boucher's parents and the police department are preparing to square off in federal court in Cincinnati on Jan. 10. The department is pushing for the case to be dropped; Boucher's parents want their lawsuit against them alleging excessive force and unreasonable seizure to move forward to a jury trial set for February.

Hundreds of pages of newly filed court documents in the case reviewed by The Associated Press reveal the moments leading up to Boucher's sudden death.

Officers Daniel Fry and Sean McCormick were at a Mason convenience store the night of Dec. 13, 2009, when the petite, 19-year-old clerk told them that a customer – a 6-foot-tall, 300-pound Boucher – had just made a lewd comment to her, had made the same comment to her earlier that day, and wanted him to leave, according to the officers' version of events.

When officers approached Boucher, a musician who had untreated bipolar disorder, they testified that Boucher repeatedly apologized and became nervous before they ordered him outside. When Boucher tried to get in his car to leave, McCormick said that he approached him from behind and put a hand on his shoulder.

Boucher then "spins around pretty quickly, and he clenches his fists and he just screams at me," to leave him alone, McCormick said.

That's when McCormick pulled his Taser and ordered Fry to handcuff Boucher.

Fry said he got the cuffs on his left wrist before Boucher spun around and punched the officer in the head twice. A wrestling match ensued before McCormick yelled for Fry to move and shocked Boucher in the chest with the Taser, causing him to fall to his knees.

The officers say Boucher then spotted the clerk outside, got up and ran toward her while yelling.

That's when Fry pulled his Taser, zapping Boucher in the back and causing him to fall hard, face-first into the pavement, landing with his hands underneath him and out of the officers' view.

Although Boucher wasn't moving, McCormick testified that he kicked him and hit him with his baton, and ordered Fry to stun him twice more with the Taser. Although Fry testified that he only remembers stunning Boucher three times, information downloaded from the device showed he used the Taser on him six times in all, five times after he had stopped moving.

A third officer, Bradley Walker, testified that he when he arrived at the scene, he saw McCormick hit a motionless Boucher with the baton about five times and saw Fry use the Taser on him once.

Walker moved in to handcuff Boucher when McCormick stopped him and told him to point his gun at him instead, he said.

"He looked at me and he said, 'We might have to shoot this guy,'" Walker said. "So I took that as he was posing a serious threat."

Soon after, the officers pulled Boucher's arms out to his sides, handcuffed him twice, patted him down and turned him over, only to find that he wasn't breathing and his face was covered in blood. Boucher was dead minutes later despite attempts to revive him.

Butler County Deputy Coroner James Swinehart found that Boucher did not have alcohol or drugs in his system and died from the fall, although he said he couldn't rule out that the seven Taser stuns were a factor.

At their recent depositions, both Fry and McCormick defended their actions, saying their use of force was appropriate, given that they couldn't see Boucher's hands, that he had punched one of them and was running toward the clerk.

"This is bang, bang, bang. We were just trying to quickly de-escalate this combative suspect and put him in handcuffs," McCormick said. "There was just no way I was going to get close, to have another officer get assaulted ... Too much had happened for me to in there and grab hold of him."

Neither officer was disciplined, and the Ohio Bureau of Criminal Investigation cleared both of wrongdoing.

Jennifer Branch, the Boucher family's attorney, argues that the situation never should have happened, that Boucher should have been allowed to get in his car and leave because making a lewd comment is not a criminal offense. But even after the alleged assault on Fry, Branch argues that the use of force was inappropriate.

"You cannot kick someone, tase them five times, and beat them with a baton if they're passive," she said. "At the moment that Doug was on the ground, not moving, not hitting, not kicking, not threatening, not running, not screaming – just failing to pull his hands out to be cuffed – the officers have a duty to look at the situation and say, 'Huh, maybe I shouldn't be using force here.'"

Boucher's parents, who live in Marion, Ind. – where Boucher lived until he was about 30 – are seeking unspecified damages. Boucher, who was divorced, also is survived by a daughter.

Copyright 2012 by The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.